Where an employment contract does not specify when notice is deemed to be given, when does the notice of termination actually take effect?
When has the notice period started?
When an employer terminates an employee's contract, when is the notice period deemed to have started? Is it
- when the letter would have been delivered in the ordinary course of post;
- when it was in fact delivered to that address; or
- when it comes to the attention of the employee and they have read it (or had a reasonable opportunity to do so).
Paul Burton, Head of Frettens' Employment Team, says "The correct answer is 3. This is when it is actually received by the employee and she or he has read it (or had a reasonable opportunity to read it)."
This was examined in a Supreme Court case, Newcastle Upon Tyne NHS Foundation Trust v Haywood.
Redundancy and notice periods
In this case, Ms Haywood was told she was at risk of redundancy in April 2011. She turned 50 on 20 July 2011. Redundancy after her 50th birthday would have entitled her to a considerably more generous pension than redundancy beforehand.
Ms Haywood was contractually entitled to be given 12 weeks’ notice, but her contract was silent about how notice was deemed to be given.
On 19 April 2011, Ms Haywood went on holiday. On 20 April, her employer sent notice of termination by recorded delivery and ordinary post. She read it on her return from holiday, on 27 April.
If delivery was deemed effective before 27 April, she would have received the much lower pension. But if it was deemed effective on the day she returned from holiday and read it, she would have received the much more generous pension.
The majority of the Supreme Court held there was no good reason to disturb the long-standing line of caselaw from the Employment Appeal Tribunal. The notice was only deemed effective when it was read by the employee (or she had a reasonable opportunity to read it).
Paul explains "Therefore, the notice was not deemed effective until 27 April, and she was entitled to the higher pension. Employers can alleviate this situation by specifying when notice is deemed to be given within the terms of their staff employment contracts."
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Paul or Kate will be happy to discuss it with you.